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1997 Legislative Session: 2nd Session, 36th Parliament

FIRST READING

The following electronic version is for informational purposes only.

The printed version remains the official version.

HONOURABLE DENNIS STREIFEL

MINISTER OF HUMAN RESOURCES

BILL 33 – 1997

BC BENEFITS STATUTES AMENDMENT ACT, 1997

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province

of British Columbia, enacts as follows:

Part 3 of the BC Benefits (Income Assistance) Act, R.S.B.C. 1996, c. 27, is repealed.

Section 24 (3) (

i) and (

j) is repealed.

3 The following

section is added:

Eligibility and assignment of maintenance rights

24.1

(1) The Lieutenant Governor in Council may make regulations governing the

assignment of maintenance rights and the recovery of the amount of income

assistance provided in place of maintenance, including the following regulations:

(

a) prescribing categories of persons who are not eligible for income assistance

unless they and their dependants assign to the minister any maintenance

rights that

(

i) they have respecting maintenance for themselves or a dependent

child, and

(ii) are specified under paragraph (b);

(

b) specifying maintenance rights that are to be assigned to the minister,

including, but not limited to, any of the following rights:

(

i) to make an application under an enactment of British Columbia for a

maintenance order;

(ii) to enter into a maintenance agreement;

(iii) to make or defend an application for variation of a maintenance order

or maintenance agreement;

(iv) to receive payment under

(

A) a maintenance order made under the Divorce Act (Canada) or

otherwise, or

(

B) a maintenance agreement;

(

v) to enforce a maintenance order or maintenance agreement;

(vi) to file a maintenance order or maintenance agreement

under the Family Maintenance Enforcement Act ;

(

c) governing how and to whom notice of an assignment of maintenance rights

must be given;

(

d) governing how long an assignment of maintenance rights remains in effect

for different categories of maintenance rights;

(

e) prescribing terms that are to be included in an assignment of maintenance

rights and the consequences of failure to comply with those terms;

(

f) determining the amounts that may

(

i) be deducted from maintenance payments received under an

assignment of maintenance rights, and

(ii) be retained by the government,

to recover the amount of income assistance provided in place of

maintenance while the assignment is in effect;

(

g) respecting the method of accounting to a recipient for payments received

under an assignment of maintenance rights and for deductions made from

those payments;

(

h) respecting any matter considered necessary or advisable for

(

i) phasing in the application of a regulation made under this

section to

any category of persons and their dependants, and

(ii) resolving any transitional problems encountered in applying a

regulation made under this

section to persons who are recipients of

income assistance when that regulation comes into force.

(2) A regulation under subsection (1) (b) (iv) may specify that the minister be

assigned the right to receive arrears of maintenance that are paid while the

assignment is in effect, even though the arrears accrued before

(

a) the regulation came into force, or

(

b) income assistance was provided to or for the person who becomes eligible

as a result of the assignment.

(3) A regulation under subsection (1) (

d) may provide that an assignment of

maintenance rights remains in effect for a specified period after the person who

became eligible for income assistance as a result of the assignment ceases to

receive income assistance.

(4) While an assignment of maintenance rights is in effect, the minister

(

a) may make an application or bring a proceeding relating to the assigned

rights in the name of the government or in the name of the person who made

the assignment, and

(

b) has the same right to be notified and to participate in any proceedings

relating to the assigned rights that, but for that assignment, the person who

made the assignment would have had.

(5) While an assignment of maintenance rights is in effect, the person who made the

assignment is not entitled to exercise any of the assigned rights

(

a) except to the extent authorized in writing by the minister, and

(

b) subject to any terms or conditions specified in the authorization.

BC Benefits (Youth Works) Act

4 The BC Benefits (Youth Works) Act, R.S.B.C. 1996, c. 28, is amended by adding the

following section:

Eligibility and assignment of maintenance rights

15.1

(1) The Lieutenant Governor in Council may make regulations governing the

assignment of maintenance rights and the recovery of the amount of youth

allowance provided in place of maintenance, including the following regulations:

(

a) prescribing categories of youth who are not eligible for a youth allowance

unless they and their dependants assign to the minister any maintenance

rights that

(

i) they have respecting maintenance for themselves or a dependent

child, and

(ii) are specified under paragraph (b);

(

b) specifying the maintenance rights that are to be assigned to the minister,

including, but not limited to, any of the following rights:

(

i) to make an application under an enactment of British Columbia for a

maintenance order;

(ii) to enter into a maintenance agreement;

(iii) to make or defend an application for variation of a maintenance order

or maintenance agreement;

(iv) to receive payment under

(

A) a maintenance order made under the Divorce Act (Canada) or

otherwise, or

(

B) a maintenance agreement;

(

v) to enforce a maintenance order or maintenance agreement;

(vi) to file a maintenance order or maintenance agreement

under the Family Maintenance Enforcement Act ;

(

c) governing how and to whom notice of an assignment of maintenance rights

must be given;

(

d) governing how long an assignment of maintenance rights remains in effect

for different categories of maintenance rights;

(

e) prescribing terms that are to be included in an assignment of maintenance

rights and the consequences of failure to comply with those terms;

(

f) determining the amounts that may

(

i) be deducted from maintenance payments received under an

assignment of maintenance rights, and

(ii) be retained by the government,

to recover the amount of youth allowance provided in place of maintenance

while the assignment is in effect;

(

g) respecting the method of accounting to a youth for payments received under

an assignment of maintenance rights and for deductions made from those

payments;

(

h) respecting any matter considered necessary or advisable for

(

i) phasing in the application of a regulation made under this

section to

any category of youth and their dependants, and

(ii) resolving any transitional problems encountered in applying a

regulation made under this

section to youth who are being provided

with a youth allowance when that regulation comes into force.

(2) A regulation under subsection (1) (b) (iv) may specify that the minister be

assigned the right to receive arrears of maintenance that are paid while the

assignment is in effect, even though the arrears accrued before

(

a) the regulation came into force, or

(

b) a youth allowance was provided to or for the youth who became eligible as

a result of the assignment.

(3) A regulation under subsection (1) (

d) may provide that an assignment of

maintenance rights remains in effect for a specified period after the youth who

became eligible for a youth allowance as a result of the assignment ceases to

receive that allowance.

(4) While an assignment of maintenance rights is in effect, the minister

(

a) may make an application or bring a proceeding relating to the assigned

rights in the name of the government or in the name of the youth or

dependant who made the assignment, and

(

b) has the same right to be notified and to participate in any proceedings

relating to the assigned rights that, but for that assignment, the youth or

dependant who made the assignment would have had.

(5) While an assignment of maintenance rights is in effect, the youth or dependant

who made the assignment is not entitled to exercise any of the assigned rights

(

a) except to the extent authorized in writing by the minister, and

(

b) subject to any terms or conditions specified in the authorization.

Disability Benefits Program Act

5 The Disability Benefits Program Act, R.S.B.C. 1996, c. 97, is amended by adding the

following section:

Eligibility and assignment of maintenance rights

13.1

(1) The Lieutenant Governor in Council may make regulations governing the

assignment of maintenance rights and the recovery of the amount of disability

allowance provided in place of maintenance, including the following regulations:

(

a) prescribing categories of persons with disabilities who are not eligible for a

disability allowance unless they and their dependants assign to the minister

any maintenance rights specified under paragraph (b);

(

b) specifying the maintenance rights that are to be assigned to the minister,

including, but not limited to, any of the following rights:

(

i) to make an application under an enactment of British Columbia for a

maintenance order;

(ii) to enter into a maintenance agreement;

(iii) to make or defend an application for variation of a maintenance order

or maintenance agreement;

(iv) to receive payment under

(

A) a maintenance order made under the Divorce Act (Canada) or

otherwise, or

(

B) a maintenance agreement;

(

v) to enforce a maintenance order or maintenance agreement;

(vi) to file a maintenance order or maintenance agreement under the

Family Maintenance Enforcement Act;

(

c) governing how and to whom notice of an assignment of maintenance rights

must be given;

(

d) governing how long an assignment of maintenance rights remains in effect

for different categories of maintenance rights;

(

e) prescribing terms that are to be included in an assignment of maintenance

rights and the consequences of failure to comply with those terms;

(

f) determining the amounts that may

(

i) be deducted from maintenance payments received under an

assignment of maintenance rights, and

(ii) be retained by the government,

to recover the amount of disability allowance provided in place of

maintenance while the assignment is in effect;

(

g) respecting the method of accounting to a person with disabilities for

payments received under an assignment of maintenance rights and for

deductions made from those payments;

(

h) respecting any matter considered necessary or advisable for

(

i) phasing in the application of a regulation made under this

section to

any category of persons with disabilities and their dependants, and

(ii) resolving any transitional problems encountered in applying a

regulation made under this

section to persons with disabilities who

are being provided with a disability allowance when that regulation

comes into force.

(2) A regulation under subsection (1) (b) (iv) may specify that the minister be

assigned the right to receive arrears of maintenance that are paid while the

assignment is in effect, even though the arrears accrued before

(

a) the regulation came into force, or

(

b) a disability allowance was provided to or for the person who became

eligible as a result of the assignment.

(3) A regulation under subsection (1) (

d) may provide that an assignment of

maintenance rights remains in effect for a specified period after the person who

became eligible for a disability allowance as a result of the assignment ceases to

receive that allowance.

(4) While an assignment of maintenance rights is in effect, the minister

(

a) may make an application or bring a proceeding relating to the assigned

rights in the name of the government or in the name of the person who made

the assignment, and

(

b) has the same right to be notified and to participate in any proceedings

relating to the assigned rights that, but for that assignment, the person who

made the assignment would have had.

(5) While an assignment of maintenance rights is in effect, the person who made the

assignment is not entitled to exercise any of the assigned rights

(

a) except to the extent authorized in writing by the minister, and

(

b) subject to any terms or conditions specified in the authorization.

Consequential Amendments

Family Maintenance Enforcement Act

Section 1 (1) of the Family Maintenance Enforcement Act, R.S.B.C. 1996, c. 127, is

amended by repealing the definition of "creditor" and substituting the following:

"creditor"

(

a) in relation to a maintenance order, except one referred to in paragraph (b),

means the person entitled under the order to receive maintenance for

himself or herself or another person, and, in the following provisions of this

Act, includes any minister to whom the order is assigned under the BC

Benefits (Income Assistance) Act, the BC Benefits (Youth Works) Act or the

Disability Benefits Program Act :

(i)

section 9 (1);

(ii)

section 10 (1) (a) (ii);

(iii)

section 11 (1) and (2);

(iv)

section 28 (2) and (4), and

(

b) in relation to a maintenance order requiring a parent to contribute to the

maintenance of a child who is in the care of a director under the Child,

Family and Community Service Act, means that director; .

Section 1 is amended by adding the following subsections:

(1.1) For the purposes of this Act, a maintenance order is considered to be assigned to

a minister under the BC Benefits (Income Assistance) Act, the BC Benefits (Youth

Works) Act or the Disability Benefits Program Act during the period

(

a) beginning on the date the right to receive payment under the order or the

right to file the maintenance order under this Act is assigned to that minister,

and

(

b) ending on the date the assignment terminates.

(1.2) While a maintenance order is assigned to a minister referred to in

subsection (1.1), that minister is deemed for the purposes of this Act to be a party

to the maintenance order.

Section 5 (2) is repealed and the following substituted:

(2) Unless the maintenance order is assigned to a minister

under the BC Benefits (Income Assistance) Act , the BC Benefits (Youth

Works) Act or the Disability Benefits Program Act , the director

(

a) may, in writing, authorize the creditor to enforce a maintenance order while

it is filed with the director, and

(

b) may include any conditions in the authorization.

Section 6 (5) is repealed and the following substituted:

(5) Despite subsections (1), (2) and (2.1), a maintenance

order that is assigned to a minister under the BC Benefits (Income Assistance)

Act , the BC Benefits (Youth Works) Act or the Disability Benefits

Program Act may only be withdrawn from filing

(

a) by the minister to whom the order is assigned, or

(

b) with the written consent of that minister.

Section 10 (1) is amended

(

a) in paragraph (

a) by striking out "payable" and substituting

"payable, despite the terms of an assignment under the BC Benefits (Income

Assistance) Act , the BC Benefits (Youth Works) Act or the Disability

Benefits Program Act " , and

(

b) by repealing paragraph (

b) and substituting the following:

(

b) with the written approval of the director be made

directly to the creditor, except to the extent that the right to receive payment

under the maintenance order is assigned to a minister under the BC

Benefits (Income Assistance) Act, the BC Benefits (Youth Works)

Act or the Disability Benefits Program Act .

Section 18 is amended

(

a) in subsection (6) by striking out "to the creditor or to the director" and substituting

"to a person authorized under subsection (6.1) to receive payment," , and

(

b) by adding the following subsection:

(6.1) For the purposes of subsection (6), the following are authorized to receive

payment out of court:

(

a) the director, if the maintenance order is filed under this Act;

(

b) the creditor, unless the maintenance order is assigned as described in

paragraph (c);

(

c) the minister to whom the maintenance order is assigned, if it is assigned

under the BC Benefits (Income Assistance) Act, the BC Benefits (Youth

Works) Act or the Disability Benefits Program Act .

Section 21 (10) is repealed and the following substituted:

(10) If an order for payment under subsection (1), (3) (

b) or (11) is in force, a payment

made by the debtor must be credited in the following descending order of priority:

(

a) to the amount due and owing under the maintenance order after the date of

the order under subsection (1), (3) (

b) or (11);

(

b) to any arrears required to be paid under an order under subsection (1),

(3) (

b) or (11) that are due and owing to the creditor and not described by

paragraph (e);

(

c) to any other amount, not referred to in another paragraph, due and owing;

(

d) to interest payable under

section 11.1;

(

e) to any arrears required to be paid under an order under subsection (1),

(3) (

b) or (11) that are due and owing to the minister, if the maintenance

order is assigned to a minister under the BC Benefits (Income Assistance)

Act, the BC Benefits (Youth Works) Act or the Disability Benefits Program

Act ;

(

f) to any annual default fee.

Section 24 (8) is amended by striking out "Payment made by an attachee to the court or to

a creditor" and substituting "Payment made by an attachee to the court or the person

specified in the attachment order" .

Section 32 is repealed and the following substituted:

How payments are credited and reduction of arrears applied

(1) Unless the court otherwise orders, all payments, except when an order for

payment under

section 21 (1), (3) (

b) or (11) is in effect, must be credited in the

following descending order of priority:

(

a) to the periodic payment most recently due under the maintenance order;

(

b) to arrears due and owing other than arrears described under paragraph (e);

(

c) to any other amount, not referred to in another paragraph, due and owing in

respect of the maintenance order;

(

d) to interest payable under

section 11.1;

(

e) to any arrears that are due and owing to the minister, if the maintenance

order is assigned to a minister under the BC Benefits (Income Assistance)

Act, the BC Benefits (Youth Works) Act or the Disability Benefits Program

Act ;

(

f) to any annual default fee.

(2) Unless the court otherwise orders, if arrears of maintenance are reduced by a

court, the amount by which they are reduced must first be applied to reduce

arrears referred to in subsection (1) (e).

Section 41 (2) is repealed and the following substituted:

(2) A statement signed by the director and stating that a maintenance order is filed

with the director is, without proof of the signature, conclusive evidence of the

facts stated.

Family Relations Act

Section 91 (5) of the Family Relations Act, R.S.B.C. 1996, c. 128, is repealed and the

following substituted:

(5) If the right to apply for an order under this

Part is assigned to a minister under

section 24.1 of the BC Benefits (Income Assistance) Act,

section 15.1 of the BC

Benefits (Youth Works) Act or

section 13.1 of the Disability Benefits Program

Act, the minister to whom the right is assigned may apply for the order in the

name of the government or the name of the person who made the assignment.

Commencement

17 This Act comes into force by regulation of the Lieutenant Governor in Council

Explanatory Notes

[This Bill amends the Revised Statutes of British Columbia,

1996. The Revised Statutes of British Columbia, 1996 came into force on April

21, 1997.]

SECTION 1: [BC Benefits (Income Assistance) Act, repeals

Part 3] repeals provisions

relating to the voluntary assignment of maintenance rights.

SECTION 2: [BC Benefits (Income Assistance) Act, repeals

section 24 (3) (

i) and (j)]

removes regulatory powers that relate to

Part 3 which is being repealed.

SECTION 3: [BC Benefits (Income Assistance) Act, enacts

section 24.1] adds a provision

authorizing the Lieutenant Governor in Council to make regulations for the

assignment of maintenance rights and for the recovery of income assistance

paid out when maintenance payments required by an agreement or court order

are not made. The new provision authorizes the Lieutenant Governor in

Council to prescribe categories of persons who are not eligible for income

assistance unless their rights to maintenance are assigned. It also specifies

some of the legal and procedural consequences of an assignment of maintenance rights.

SECTION 4: [BC Benefits (Youth Works) Act, enacts

section 15.1]

adds a provision, similar to

section 24.1 of the BC Benefits (Income Assistance)

Act , authorizing the Lieutenant Governor in Council to make regulations

for the assignment of maintenance rights and for the recovery of youth allowance

paid out when maintenance payments required by an agreement or court order are

not made. The new provision authorizes the Lieutenant Governor in Council to

prescribe categories of persons who are not eligible for youth allowances unless

their rights to maintenance are assigned. It also specifies some of the legal

and procedural consequences of an assignment of maintenance rights.

SECTION 5: [Disability Benefits Program Act, enacts

section 13.1]

adds a provision, similar to

section 24.1 of the BC Benefits (Income Assistance)

Act and

section 15.1 of the BC Benefits (Youth Works) Act , authorizing

the Lieutenant Governor in Council to make regulations for the assignment of

maintenance rights and for the recovery of disability allowance paid out when

maintenance payments required by an agreement or court order are not made. The

new provision authorizes the Lieutenant Governor in Council to prescribe categories

of persons who are not eligible for a disability allowance unless their rights

to maintenance are assigned. It also specifies some of the legal and procedural

consequences of an assignment of maintenance rights.

SECTION 6: [Family Maintenance Enforcement Act, amends

section 1 (1)]

expands the definition of "creditor" to include, for certain purposes, the appropriate

minister if a maintenance order has been assigned under the BC Benefits legislation

(the BC Benefits (Income Assistance) Act , the BC Benefits (Youth Works)

Act and the Disability Benefits Program Act ).

SECTION 7: [Family Maintenance Enforcement Act, adds

section 1 (1.1) and (1.2)] adds

provisions specifying the period an assignment is in place for purposes of the

Family Maintenance Enforcement Act and deeming the minister to be a party

during that period.

SECTION 8: [Family Maintenance Enforcement Act, repeals and replaces

section 5 (2)]

ensures that only the director of maintenance enforcement can enforce a maintenance order while it is filed with the director and assigned to a minister.

SECTION 9: [Family Maintenance Enforcement Act, repeals and replaces

section 6 (5)]

ensures that only the minister can withdraw a maintenance order from filing

while it is assigned to the minister.

SECTION 10: [Family Maintenance Enforcement Act, amends

section 10)] makes changes

to the provisions directing how payments are to be made under filed orders.

The change are consequential to the amendments to the BC Benefits legislation.

SECTION 11: [Family Maintenance Enforcement Act, amends

section 18)] makes changes

to the garnishment provisions. The change are consequential to the amendments to the BC Benefits legislation.

SECTION 12: [Family Maintenance Enforcement Act, repeals and replaces

section 21

(10)] makes changes to the provisions directing how payments are to be

credited if they are made in compliance with a court order made at a default

hearing. The changes are consequential to the amendments to the BC Benefits

legislation.

SECTION 13: [Family Maintenance Enforcement Act, amends

section 24 (8)] makes

changes to the provisions relating to payments made under attachment orders

The changes are consequential to the amendments to the BC Benefits legislation.

SECTION 14: [Family Maintenance Enforcement Act, re-enacts

section 32] makes changes

to the crediting of payments provision to specify the order of priority for allocating payments to arrears when a maintenance order is assigned under the BC

Benefits legislation. Also, adds provisions about the effect of a reduction in

arrears.

SECTION 15: [Family Maintenance Enforcement Act, repeals and replaces

section 41 (2)]

makes changes consequential to the repeal of

Part 3 of the BC Benefits (Income

Assistance) Act .

SECTION 16: [Family Relations Act, repeals and replaces

section 91 (5)] makes changes to

a procedural provision of the Family Relations Act relating to application for

maintenance orders. The changes are consequential to the amendments to the

BC Benefits legislation.

Copyright © 1997: Queen's Printer, Victoria, British Columbia, Canada